Thompson v. Yahoo! Inc.

• Court: District Court, District of Columbia
• Decided: August 4, 2021
• Docket: Civil Action No. 2021-1146
• Status: Published

Opinion

FILED UNITED STATES DISTRICT COURT AUG. 4, 2021 FOR THE DISTRICT OF COLUMBIA Clerk, U.S. District & Bankruptcy Court for the District of Columbia

ORAL GEORGE THOMPSON, ) ) Plaintiff, ) v. ) Civil Action No. 1:21-cv-01146 (UNA) ) YAHOO! INC., ) ) Defendant. )

MEMORANDUM OPINION

Plaintiff, proceeding pro se, filed a complaint, Dkt. 1 (“Compl.”), and application for leave

to proceed in forma pauperis (“IFP”), Dkt. 2, on April 26, 2021, but did not file a six-month trust

accounting, as required by 28 U.S.C. § 1915(a)(2). Another court in this District entered an order

on May 26, 2021, directing plaintiff to submit the required financial information within thirty days

of issue. See Order, Dkt. 3. Plaintiff has now submitted the required financial information, see

Dkt. 6, so the Court will grant plaintiff’s pending IFP application and review the initiating

pleading, see 28 U.S.C. §§ 1915(e)(2)(B), 1915A(a). For reasons explained below, this matter is

dismissed.

Plaintiff, who was tried criminally in this Court and convicted on March 31, 2017, see

United States v. Gonzalez Bencomo, et al., No. 12-cr-00266 (D.D.C. filed Dec. 12, 2012), sues

Yahoo!, Incorporated (“Yahoo”).1 See Compl. at 1, 4–6; see generally Compl. Exs., Dkt. 1-1. As

part of the criminal investigation against him, a search warrant was issued to Yahoo in 2011.

1 Plaintiff filed a substantially similar, if not identical lawsuit, see Thompson v. Delbecq, et al., No. 20-cv-00255 (UNA) (D.D.C. filed Jan. 30, 2020), which was dismissed on March 9, 2020, see Dkts. 5, 6 (Memorandum Opinion & Order). 1 Subsequently, and during his criminal prosecution, a Yahoo representative, Ms. Delbecq, was

called to testify to authenticate email account(s) and related materials associated with plaintiff.

See id.; see also Gonzalez Bencomo, No. 12-cr-00266 at Mar. 28, 2017 Min. Entry. Plaintiff

alleges that, as a result of this Court disclosure, he has suffered various privacy breaches, hacks,

and other intrusions, over the course of the last decade. See Compl. at 2–4, 16–18. Plaintiff

requests that the Court order Yahoo to “disclose their affiliation with a sophisticated hacker known

as Marcus Morris Torrence . . . [b]efore serious bodily harm results.” Id. at 18.

In support, he cites 18 U.S.C. § 2707. Id. at 1, 11–18. Section 2707(c) provides a private

right of action for damages arising out of violations of the Stored Communications Act (“SCA”),

id. at § 2701. He also cites 18 U.S.C. § 2520, which allows any person whose wire, oral, or

electronic communications are intercepted and used in violation of the Electronic Communications

Privacy Act (“ECPA”) to recover damages. Plaintiff contends that the federal government, Yahoo,

and Mr. Torrence are jointly conspiring to harass and surveil him, in contravention of these

statutes. See Compl. at 3–4.

The Court cannot exercise subject matter jurisdiction over a frivolous complaint. Hagans

v. Lavine, 415 U.S. 528, 536–37 (1974) (“Over the years, this Court has repeatedly held that the

federal courts are without power to entertain claims otherwise within their jurisdiction if they are

‘so attenuated and unsubstantial as to be absolutely devoid of merit.’ ”) (quoting Newburyport

Water Co. v. Newburyport, 193 U.S. 561, 579 (1904)); Tooley v. Napolitano, 586 F.3d 1006, 1010

(D.C. Cir. 2009) (same). A court may dismiss a complaint as frivolous “when the facts alleged

rise to the level of the irrational or the wholly incredible,” Denton v. Hernandez, 504 U.S. 25, 33

(1992), or “postulat[e] events and circumstances of a wholly fanciful kind,” Crisafi, 655 F.2d at

1307–08. The instant complaint satisfies this standard. 2 Additionally, while a private right of action exists under 18 U.S.C. § 2520, under both 18

U.S.C. §§ 2707 and 2520, good faith reliance on a court warrant or order, a grand jury subpoena,

a legislative authorization, or a statutory authorization, is considered a complete defense, see 18

U.S.C. §§ 2707(e), 2520(d). Despite plaintiff’s suspicions that the subpoena was improperly

issued, see Compl. at 6–18, the subpoena, attached to plaintiff’s complaint, see Compl. Exs. at 16–

17, “was issued by a federal district court and included the title of the action and the cause number.

. . [and] [n]othing else gives any indication of irregularity sufficient to put [defendant] on notice

that the subpoena was” in any way improper. McCready v. eBay, Inc., 453 F.3d 882, 892 (7th Cir.

2006). “Therefore there is no indication that [defendant] acted in any fashion other than good

faith, so that its compliance falls squarely within the statutory defense,” as “[t]he subpoena was

issued by a federal district court on behalf of a defendant in a pending lawsuit, seeking information

about a party opponent which related to the case.” Id.

Furthermore, “in delineating the boundaries of criminal liability under Section 2701(a) and

civil liability under Section 2707(a), Congress made no mention of conspiracy, aiding and abetting,

or any other form of secondary liability.” Council on American-Islamic Relations Action Network,

Inc. v. Gaubatz, 891 F. Supp. 2d 13, 26–7 (D.D.C. 2012).

Finally, these subsections of the SCA specify that an action may not be commenced later

than two years after the date upon which the plaintiff first discovered or had a reasonable

opportunity to discover the violation. 18 U.S.C. §§ 2707(f), 2520(e). Plaintiff’s own allegations

clearly indicate that he became aware of these violations, at the very latest, during Ms. Delbecq’s

testimony, which took place in March 2017. Therefore, plaintiff’s claims are also time-barred.

3 For the reasons outlined above, the complaint and this case will be dismissed. Plaintiff’s

request for urgent service, Dkt. 3, will be denied as moot. A separate order accompanies this

memorandum opinion.

DATE: August 4, 2021 CARL J. NICHOLS United States District Judge